Bombay High Court
Lt. Col. Ravindranath H. Hiramath vs Prashantkumar Buttan on 6 April, 1994
Equivalent citations: 1994(4)BOMCR445, (1994)96BOMLR346, 1995 A I H C 2316, 1995 BOMRC 135 (1994) 4 BOM CR 445, (1994) 4 BOM CR 445
JUDGMENT M.L. Dudhat, J.
1. This civil revision application along with Civil Revision Application Nos. 456 of 1990, 4618 of 1990 and 608 of 1989 are tagged together as there is a common question of law as to the applicability of section 13-A-2 of the Bombay Rent Act, 1947.
2. The present petitioner has filed this civil revision application against the judgment order, dated May 30, 1992, passed by the Competent Authority, Division Pune, in M.A. No. 5 of 1992. By the aforesaid judgment and order the competent authority dismissed the application filed by the present petitioner on the ground that the competent authority has no jurisdiction to entertain the said application and also on the ground that the petitioner is a tenant-member of the Society and such a tenant-member of the Society is excluded from the ambit of section 13-A-2 of the Bombay Rent Act. The petitioner in this case is a tenant-member of the Tridal Nagar Co-op. Housing Society in respect of flat No. 5 in building No. A-1 which is duly registered under the Maharashtra Co-operative Societies Act, 1960. The petitioner is the member of Arm Force and at the relevant time he was required to go to North East Frontier area where he was posted. Since the respondent required residential accommodation for temporary purpose, the same was given by the present petitioner to the respondent vide agreement dated January 31, 1987. The said agreement was to come to an end on December 31, 1987. In the mean time there was amendment to the Bombay Rent Act and section 13-A-2 was introduced on October 1, 1987 to enable the landlords to recover the possession of the premises given on licence after the expiry of the said licence.
3. After expiry of the said licence on October 7, 1991 the petitioner gave notice to the respondent-licensee terminating his licence. Thereafter the petitioner preferred the present application under section 13-A-2 of the Bombay Rent Act. It was contended on behalf of the petitioner that the suit premises were given on licence which is covered under section 13-A-2 of the Bombay Rent Act. It was further contended on behalf of the present petitioner that the said licence was terminated vide notice dated October 7, 1991 and the respondent refused to hand over the possession of the said suit flat. Therefore the application was made by the present petitioner to the competent authority under the provisions of section 31-B of the Bombay Rent Act. It was contended before the competent authority on behalf of the respondent that the provisions of section 13-A-2 are not applicable to the licence which was created prior to October 1, 1987 and also that the provisions of section 13-A-2 are not applicable to the tenant-member being the tenant of the Society. After allowing both the parties to lead evidence the competent authority held that the competent authority has no jurisdiction to entertain and try the said application and also held that the applicant being a tenant-member of Tridal Nagar Co-op. Housing Society i.e. not being the owner, the competent authority has no jurisdiction to entertain and try the application in view of section 13-A-2 of the Bombay Rent Act. In view of the aforesaid finding the competent authority dismissed the application preferred by the present petitioner. It appears that the competent authority came to the conclusion that the amendment of 1987 is applicable to the licences created on October 1, 1987 and thereafter, and the amendment is not applicable in respect of the licences created prior to October 1, 1987. In this civil revision application as well as in the other three abovementioned civil revision applications there is a common question of law involved to the effect that whether in case of licence created prior to October 1, 1987 the amendment more particularly the provisions of section 13-A-2 are attracted or not. Mr. B.P. Apte, the learned Counsel appearing on behalf of the present petitioner has submitted that as per the provisions of section 13-A-2 all licences existing on October 1, 1987 are covered by the amendment. Mr. Abhyankar, Mr. Karkamkar and Mr. Gorwadkar, the learned Counsel appearing in other civil revision applications support the arguments as advanced by Mr. Apte. On the other hand Mr. Dhakephalkar, Mr. Kumbhakoni, Mr. Kotwal and Mr. Surana, the learned Counsel appearing in all these four matters contended that section 13-A-2 introduced for the first time from October 1, 1987 is applicable to the licences entered into on or after October 1, 1987 and the said provisions are not applicable in respect of the licences created prior to October 1, 1987.
4. To settle the aforesaid controversy, according to me two sections viz. section 13-A-2 and section 6(4) will have to be looked into carefully as they are vitally important. Section 13-A-2 was introduced for the first time by Maharashtra Act XXVIII of 1987 on October 1, 1987. The said amendment was introduced as many flats were kept vacant by the owners out of the fear that if the licence is granted in respect of the said flats the licensee may claim tenancy. Therefore having regard to the increasing housing shortage the Legislature contemplated a scheme to induce the owners to give vacant flats for occupation on licence for residence without being subjected to the provisions of the Standard Rent and also providing quicker possession of the flats without the usual long delay. This appears to be the object and intention of the Legislature as stated in the statement of objects and reasons. With these objects the aforesaid amendment of October 1, 1987 was introduced. Section 13-A-2 which is introduced by the said amendment reads as under:
"13-A-2. (1) Notwithstanding anything contained in this Act, a licensee in possession or occupation of premises given to him on licence for residence shall deliver possession of such premises to the landlord on expiry of the period of licence; and on the failure of the licensee to so deliver the possession of the licensed premises, a landlord shall be entitled to recover possession of such premises from a licensee, on the expiry of the period of licence by making an application to the Competent Authority; and the Competent Authority, on being satisfied that the period of licence has expired, shall pass an order for eviction of a licensee.
(2) Any Licensee who does not deliver possession of the premises to the landlord on expiry of the period of licence and continues to be in possession of the licensed premises till he is dispossessed by the Competent Authority shall be liable to pay damages at double the rate of the licence coblique fee or charge of the premises fixed under the agreement of licence.
(3) The competent authority shall not entertain any claim of whatever nature from any other person who is not a licensee according to the agreement of licence.
Explanation.--For the purposes of this section,-
(a) the expression "landlord" does not include a tenant or a sub-tenant who has given premises on licence;
(b) an agreement of licence in writing shall be conclusive evidence of the fact stated therein."
After going through the aforesaid provisions it becomes clear that in order to see that the aforesaid provisions are made applicable if i) the premises are given on licence, ii) if the licensor is the owner of the flat or the premises and not a tenant-sub-tenant, iii) if the premises are given on licence for residential purpose only meaning thereby that the provisions are not applicable to the licence created in respect of non-residential premises and iv) if the period of licence has expired and v) if the agreement of leave and licence in writing is conclusive evidence of the facts stated therein.
5. Mr. Apte, the learned Counsel appearing on behalf of the petitioner contended that the phraseology "Notwithstanding anything contained in this Act, a licensee in possession or occupation of premises given to him on licence for residence..." suggests that the Legislature intended to cover all the licences which were in existence on or after October 1, 1987, as the object of the Legislature is to encourage the licensors to give their premises on licence instead of they keeping them vacant, as a measure of avoiding acute shortage of residential premises. The aforesaid section starts with notwithstanding clause and therefore all the licenses in respect of residential premises which were in existence on the date when the amendment came into force i.e. on October 1, 1987, provisions of section 13-A-2 were applicable. If that is so and if the Legislature intended only to apply the said provisions to the licences created on and after October 1, 1987 the Legislature would have specifically excluded the licence agreements entered into prior to October 1, 1987.
6. On the other hand Mr. Dhakephalkar, the learned Counsel appearing on behalf of the licensee contended that section 13-A-2 is not applicable to the licences created prior to October 1, 1937. In order to support his proposition Mr. Dhakephalkar relied upon section 6(4) of the Bombay Rent Act. The provisions as regards the residential and other premises come within the ambit of part II of the Act. As per section 6(1) the areas specified in Schedule I, Part 2 shall apply to premises let or given on licence for residence, education, business, trade or storage. However, as per the proviso to section 6(1) the Government may by notification in the Official Gazette, direct that in any of the said areas this part shall cease to apply to premises let or given on license for any of the said purposes. There is one more proviso to section 6(1) whereby Government may by like notification direct that in any of the said areas this part shall re-apply to premises let or given on licence for such of the aforesaid purposes as may be specified in the notification. By section 6(1-A) the State Government may, by notification in the Official Gazette direct that in any of the said areas this part shall apply to premises let or given on licence for any other purposes. As per section 6(3) on and from the date of commencement of the Bombay Rent Act Amendment 1973 the provisions of Part 2 made applicable by or under the said Act to premises given on licence for any purpose in any area, shall apply thereto as they apply to premises let for that purposes in such area, immediately before such commencement. By going through the aforesaid provisions it was contended by Mr. Dhakephalkar on behalf of the licensee that Part II is made applicable in respect of licences covered under the amendment of 1973. Consistent with the aforesaid provisions i.e. sections 6(1)(2) and (3) sub-section (4) is enacted in such a way, according to the arguments advanced on behalf of the licensee that the only licences entered into on or after October 1, 1987 are excluded from the ambit of the Bombay Rent Act, more particularly Part II. To support his arguments Mr. Dhakephalkar relied upon section 6(4) of the Bombay Rent Act, which reads as under :
"6(4) Notwithstanding anything contained in the foregoing provisions of this section or any other provisions of this Act, the application of Part II to premises given by a landlord referred to in section 13-A-2 on or after the commencment of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Act, 1986, on licence for residence shall be subject to the provisions of section 13-A-2 and of Part II-A."
By referring to the aforesaid section it was contended by Mr. Dhakephalkar that non withstanding clause contained in section 6(4) is applicable only to the licences created on or after the commencement of the amendment i.e. on or after October 1, 1987. Mr. Dhakephalkar emphasised on the phraseology used under section 6(4) "the application of Part II to premises given by a landlord referred to in section 13-A-2 on or after the commencement of the Bombay Rent Act...". On the other hand it is contended on behalf of the petitioner in the present case by Mr. Apte that the emphasis by section 6(4) is on the applicability of Part II to the premises given by the landlord referred to in section 13-A-2 and after going through section 13-A-2 it becomes clear that the legislature intended to include all the licences in existence on and after October 1, 1987. Therefore, by harmoneously constructing sections 13-A-2 and section 6(4), the amendment of 1987 is applicable to all the licences which were in existence on and after October 1, 1987. On the other hand Mr. Dhakephalkar contended that while interpreting section 6(4) one cannot forget the phraseology used in section 6(4) "on or after the commencement of this Act" and laying emphasis on this phraseology the amendment introduced on October 1, 1987 it was argued that the licences created on or after the introduction of the amendment on October 1, 1987 can only come within the ambit of section 13-A-2 of the Bombay Rent Act.
7. According to me if one reads section 6 as a whole and construe section 6(4) in the background of earlier sub-sections of section 6 it appears that the Legislature intended to exclude the applicability of Part II of the Bombay Rent Act to the premises given by the landlord referred to in section 13(2) on or after the commencement of the amendment which came into force on October 1, 1987, meaning thereby that the premises given by the landlord referred to in section 13(2) and Part II-A from October 1, 1987. According to my opinion, by applying the rules of harmoneous construction to section 6(4) and section 13-A-2 it does not stand to reason to exclude premises given on licence even if given prior to October 1, 1987, if in fact the said licence continues to be in existence on or after October 1, 1987. As per the ratio laid down in the case of Shaikh Gulfan v. Sanat Kumar, , ordinarily, the words used in a statute have to be construed in their ordinary meaning; but there are cases where judicial approach finds that the simple device of adopting the ordinary meaning of words does not meet the ends of a fair and a reasonable construction. Exclusive reliance on the bare dictionary meaning of words may not necessarily assist a proper construction of the statutory provision in which those words occur. Very often, in interpreting a statutory provision, it becomes essential to have regard to the subject matter of the statute and the object which it is intended to achieve. That is the reason why in deciding the true scope and effect of the relevant words, the context in which the words occur, the object of the statute in which the provision is included, and the policy underlying the statute become relevant and material. From the statement of objects and reasons it is clear that keeping in view the increasing shortage of housing and keeping in view that the owners keep their flats vacant and do not give them on licence out of a fear that the licensee may claim tenancy, the amendment was introduced. On fair reading of section 13-A-2 is also becomes clear that the Legislature intended to bring all the licences which were in existence after October 1, 1987 within the ambit of section 13-A-2. Section 13-A-2 being a substantive provision intending to cover all the licences in existence on and after October 1, 1987 by applying the doctrine of harmoneous construction as aforesaid and the ratio of the Supreme Court to the aforesaid section 6(4) in respect of licences in existence on or after October 1, 1987 Part II-A of the Bombay Rent Act and not Part II shall be made applicable. Mr. Dhakephalkar the learned Counsel appearing on behalf of the licensee further argued that the amendment introduced on October 1, 1987 cannot be made applicable retrospectively unless there is a specific provision to that effect, and since there is no specific provision in section 13-A-2 for applying the said provision retrospectively the licence agreement entered into prior to October 1, 1987 is not covered by the said amendment. According to my opinion, there is no substance in this argument. The reason being that the phraseology used in section 13-A-2 is "notwithstanding anything contained in this Act, a licensee in possession or occupation of premises given to him on licence for residence..." and that clearly indicates that the Legislature intends to bring the licences which were in existence on or after October 1, 1987. The question is as to whether on the date of the amendment the licensee under the existing agreement was in possession of the residential premises given to him by the licensor. Once this condition is fulfilled, according to my opinion, it is not relevant as to whether the agreement creating licence was entered into prior to October 1, 1987 or after October 1, 1987 Therefore, there is no question of applicability of section 13-A-2, Clause 1 retrospectively.
8. Mr. Dhakephalkar, the learned Counsel appearing for the licensee further argued that under section 13-A-2(1) there is an obligation on the part of the licensee to deliver the possession of the licenced premises, and also a new obligation on the competent authority to pass the order of eviction. After relying on the observations made by this High Court in 1988 Mah. L.J. 979 that the substantive provisions can be drafted partly prospective and partly retrospective, Mr. Dhakephalkar contends that at least the provisions as regards the obligation on the part of the licensee to hand over the possession of the premises to the licensor after termination of the licence should not be given retrospective effect. According to me since I have already observed earlier that section 13-A-2 is made applicable to the licence in existence on and after October 1, 1987, there is no question of giving any retrospective effect to this provision. The question of handing over the possession and payment of enhanced compensation on failure on the part of the licensee on termination of the licence agreement which is going to take place only and only after October 1, 1987 and therefore merely because the agreement of licence is entered into prior to October 1, 1987 will not make any difference. Mr. Dhakephalkar further argued that as per Explanation 13 to section 13-A-2 the agreement of licence in writing shall be conclusive evidence and this provision should not be applied to the licences created prior to October 1, 1987. As pointed out earlier if the licence is in existence on or after October 1, 1987 the question of interpretation of agreement of licence in writing is also going to arise before the competent authority on or after October 1, 1987 and therefore Clause B of Explanation under section 113-A-2 has to be made applicable to the licences created even prior to October 1, 1987 as also created after October 1, 1987.
9. From the above discussion this Court is of the view that the amendment to the Rent Act introduced on October 1, 1987 is applicable to all the licences created on and after October 1, 1987 and also in respect of the licences created prior to October 1, 1987 provided the licences continued to be in existence on and after October 1, 1987.
10. The next question to be decided is as to the licence agreement entered into prior to October 1, 1987 and terminated or expired prior to October 1, 1987. In view of section 13-A-2 more particularly sub-section (1) the said provision is applicable to the licences in existence on and after October 1, 1987, all the licences created prior to October 1, 1987 and terminated prior to October 1, 1987 or in respect of which the proceedings are pending in the courts, section 13-A-2 is not applicable. However, in respect of the licences created prior to October 1, 1987 and where there is no indication as to whether the said agreements are terminated or not, the competent authority should allow the parties to lead evidence on the point as to whether the licence agreements continued on or after October 1, 1987 depending upon the conduct of the parties and such other circumstances. In view of this, in the present civil revision application the decision of the competent authority to the effect that the competent authority has no jurisdiction to entertain and try this application is liable to be set aside.
11. In the present case the competent authority has also come to the conclusion that the petitioner is not entitled to make an application under section 13-A-2 more particularly because of section 13-A-2 Explanation A as the petitioner is not the landlord but is a tenant being the tenant-member of a Co-operative Society. Mr. Apte, the learned Counsel for the petitioner, has contended that the competent authority has equated the tenant-membership of the Co-operative Society to the tenancy under the Rent Act or Transfer of Property Act. In order to support his aforesaid contention Mr. Apte relied upon the observations of the Supreme Court made in paras 12 and 13 of the judgment passed in the case of Sanwarmal Kejriwal v. Vishwa Co-operative Housing Society Ltd., . Mr. Apte has also relied upon the ratio as laid down by the Division Bench of this Court in the case of Contessa Knit Wear v. Udyog Man. Co-op.H.Soct., 1980 Mah.L.J. 539 : 1980 Bom.C.R. 493. In para 10 of the said judgment this High Court has held that one of the incidents of the scheme of Tenants' Co-partnership Society is the indispensable dual ownership, management and authority to enforce the obligation being vested in the society while right of occupation subject to bye-laws being vested in the member. Another incidence is the indispensability of restricting the right of occupation to the member himself for whose occupation it is intended from its inception and who alone is liable to comply with such obligation and as a corollary thereto, his disability to induct any third person therein except with the permission of the society. Yet another incidence is the restriction on his right to transfer his interest in the society including the incidental right of occupation. In view of these observations as mentioned above the tenant-member of the Co-operative Society is not a tenant as held by the competent authority and his finding to that effect is liable to be set aside.
12. In this matter the competent authority has already given a finding in favour of the petitioner-landlord that the respondent-licensee was occupying the suit premises under the agreement of licence and that the respondent is not a tenant. In view of this under section 13-A-2(1) the order of eviction will have to be passed against the respondent-licensee. Further, Mr. Apte, the Ld. Counsel for the petitioner contended that from April 1, 1993 the respondent has not paid the amount of licence. He also contended that in view of the mandatory provisions of section 13-A-2(2) since on the date of expiry of the licence i.e. on December 31, 1987 the respondent continued to be in possession of the licenced premises and till today the licensee shall be liable to pay the damages at double the rate of licence fee or charges as fixed under the agreement. Under the agreement of licence dated January 31, 1987 more particularly Clause 2 of the same the respondent-licensee had agreed to pay compensation of Rs. 1,800/- per month. In view of this clause and provisions of section 13-A-2(2) from the date of the termination of the licence i.e. from December 31, 1987 the respondent-licensee is directed to pay Rs. 3,600/- per month as and by way of compensation till the actual date of the delivery of the suit premises. Mr. Surana, the learned Counsel for the licensee contended that in fact the respondent-licensee has made the payment of licence fee till March 31, 1993. Mr. Apte, for the petitioner, also agrees to have received the said compensation at the rate of Rs. 1,800/- till March 31, 1993. In view of this the petitioner shall give credit to the respondent-licensee to the extent of whatever amount the petitioner has received from the respondent while recovering the compensation from the date of the expiry of the licence till the actual date of delivery of possession.
In view of this the present civil revision application is allowed. The decision given by the competent authority dated May 30, 1992 in M.A. No. 5 of 1992 is set aside. Rule is made absolute in terms of prayer Clauses (a) & (ai) as amended.
Mr. Surana prays for time to approach the Supreme Court. In view of the intervention of summar vacation Mr. Surana prays that at least three months time may be given so as to enable them to approach the Supreme Court. Mr. Apte, the learned Counsel for the petitioner contends that one months' time is sufficient to approach the Supreme Court.
Heard both the sides.
The judgment and order in the present civil revision application not to be executed for a period of three months from today.
Certified copy be furnished forthwith.